JOHN A. THOMPSON, PETITIONER V. UNITED STATES OF AMERICA
No. 90-798
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the Court of Military Appeals (Pet. App. 1b-15b) is
reported at 31 M.J. 168. The opinion of the Air Force Court of
Military Review (Pet. App. 1a-17a) is reported at 29 M.J. 541.
JURISDICTION
The judgment of the Court of Military Appeals was entered on
September 25, 1990. The petition for a writ of certiorari was filed
on November 20, 1990. The jurisdiction of this Court is invoked under
28 U.S.C. 1259(3).
QUESTION PRESENTED
Whether petitioner's Sixth Amendment right to confront the
witnesses against him was violated when the trial judge permitted the
child victims to testify while seated facing away from petitioner,
after the judge found that the victims would suffer emotional trauma
if required to testify facing petitioner.
STATEMENT
Following a general court-martial at Kirtland Air Force Base in New
Mexico, petitioner, a member of the United States Air Force, was
convicted of assaulting his wife, in violation of Article 128 of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. 928, and sodomizing
his two minor stepsons, in violation of Article 125, 10 U.S.C. 925.
Petitioner was sentenced to confinement for 30 years, a dishonorable
discharge, forfeiture of all pay and allowances, and a reduction in
rank. The convening authority approved the findings and sentence.
The Air Force Court of Military Review affirmed the findings and
sentence. On discretionary review, the Court of Military Appeals
affirmed.
1. The evidence at trial showed that petitioner had repeatedly
anally and orally sodomized his two stepsons in 1984 and 1985 when one
was ten years old and the other was seven years old. Pet. App. 2b.
Prior to trial, the prosecution informed petitioner that they were
going to request that the boys be seated facing away from petitioner
when they testified. Tr. 68. Petitioner's counsel objected to the
proposed seating arrangement. Ibid.
At the time of trial, in February 1988, both of the boys were
undergoing treatment for psychological and emotional trauma resulting
from the incidents with petitioner. Pet. App. 2b-3b. They saw Linda
Sweeney-Frawley, a psychologist, on a bi-weekly basis beginning in
June 1987 and continuing up to the time of trial. Tr. 76-77. The
boys had been referred to Ms. Sweeney-Frawley solely for treatment.
Tr. 76.
The prosecution responded to petitioner's objection by calling Ms.
Sweeney-Frawley to explain why it was necessary to seat the boys in
the fashion that the prosecutor had proposed. Tr. 70-71. The
prosecutor asked Ms. Sweeney-Frawely if she had an opinion as to
whether the boys would be able to sit in the witness box and describe
what had happened to them. Tr. 77. She responded that "that would
present a problem for the children who have a great deal of anxiety
and fear about participation" in the trial proceedings. Tr. 77-78;
Pet. App. 3b-4b. She explained that the boys continued to have "a
great deal of anxiety and shame and fear" regarding the events about
which they were to testify, and that it would "impair their ability to
talk about their experiences and to actively think about the
questions" if they were required to testify in petitioner's direct
line of vision. She added that the boys had spoken to her recently
about their fear of being in the courtroom with petitioner and even
expressed fear that they might be attacked by him in the courtroom.
Tr. 77-78; Pet. App. 3b-4b.
When asked what impact facing the boys away from petitioner would
have on their ability to testify, Ms. Sweeney-Frawley responded, "I
think that that would lessen their anxiety and would be less likely to
produce blocks in their intellectual capacity to respond to questions
if they do not have (petitioner) in their direct line of vision." Tr.
78; Pet. App. 4b. Ms. Sweeney-Frawley testified that the boys'
responses to discussing the incidents varied: the younger one tended
to become withdrawn, while the older one tended to become more
obviously anxious and had difficulty focusing his attention and
sitting still. Tr. 81. Although she did not believe that the boys
would "adamantly refuse" to testify if they had to face petitioner,
Tr. 82, Ms. Sweeney-Frawley did believe that such a requirement would
impair their ability to recall the events and testify about them,
ibid. She stated that the older boy
has a stuttering problem that increases when he is anxious and
anxiety is such an overwhelmingly strong emotion that it blocks
intellectual function, so that if you raise the anxiety level of
someone, it's normal for intellectual, the ability to
intellectually think about something, to be shut off. And I
think that their ability to respond to questions with their full
recollection would be impaired by that situation.
Tr. 82; Pet. App. 8a. She also explained that her opinion was based
in part on petitioner's status as the boys' stepfather. Tr. 82; Pet.
App. 8a.
The trial judge overruled petitioner's objection to the proposed
seating arrangement. He stated, Tr. 87-88; Pet. App. 4b-5b:
Trial counsel has presented evidence through Linda Ann
Sweeney-Frawley that the children if required to testify from
the witness stand where they would be looking directly at the
accused would have their ability to think and testify accurately
impaired and that they could respond better if the accused were
not in their direct line of sight, and I find by a preponderance
of the evidence that that's a fact. I further find that: One,
such a(n) arrangement will not have any effect on the Court with
regard to the presumption of innocence of the accused; ( /1/ )
Two, that the arrangement proposed by trial counsel is in no way
obtrusive and certainly not comparable with the arrangements in
Coy v. Iowa (487 U.S. 1012 (1988) cited by defense counsel;
Three, the accused and witnesses will be in the same room with
no barrier between them and the fact that the witnesses will not
be facing the accused will not deprive the accused of his right
to confrontation; Four, considering the testimony concerning
the trauma to the children if forced to testify facing the
accused, and balancing that factor against the accused's alleged
right to have witnesses facing him, I find the procedure
proposed by the trial counsel will not prejudice the rights of
the accused and will insure the witnesses testify freely. The
objectionis therefore overruled. ( /2/ )
2. The en banc Air Force Court of Military Review affirmed. Pet.
App. 1a-11a. The court reasoned that the information before the trial
judge demonstrated that the boys feared being physically assaulted by
petitioner, and that, because of that fear, the boys "were likely to
be so confounded by facing (petitioner) directly that their mental
capabilities might be blocked, rendering them incapable of testifying"
or likely to lie in order to dispell the stress of the event. Id. at
10a. Under the facts of this case, the court found that, since
petitioner was present in the courtroom and could observe everything
but the witnesses' facial expressions and since defense counsel and
the trial judge, as trier of fact, could observe the witnesses'
demeanor and facial expressions, the courtroom seating arangement did
not violate petitioner's rights under the Confrontation Clause. Id.
at 10a-11a.
3. The Court of Military Appeals also affirmed. Pet. App. 1b-12b.
Judge Cox concluded that, under Maryland v. Craig, 110 S. Ct. 3157
(1990), the courtroom seating arrangement did not violate the
Confrontation Clause. Pet. App. 8b-12b. In so ruling, Judge Cox
relied on four factors that, in his view, safeguarded the reliability
of the witnesses' testimony. First, the record showed that the boys
understood the solemnity of their oath to testify truthfully. Second,
petitioner was given every opportunity rigorously to cross-examine the
boys about their testimony. Third, the trial judge, as the
fact-finder in a bench trial, was able to observe the boys' demeanor
and to assess their credibility. Fourth, the trial judge and the
court of military review specifically found that the procedure used
here to protect the boys was necessary. Id. at 10b-11b.
Judge Everett concurred. Pet. App. 12b-14b. He concluded that the
trial judge's factual findings were sufficient under Maryland v. Craig
to justify the procedure used here. Id. at 14b. Judge Sullivan
concurred in the judgment. Pet. App. 15b. He, too, concluded that
the trial judge's factual findings were sufficient under Maryland v.
Craig to justify the seating arrangement. Ibid. He also determined
that any error was harmless given the testimony of the psychologist,
who reiterated the boys' out-of-court account of petitioner's
assaults. Ibid.
ARGUMENT
Petitioner contends that the courtroom seating arrangement violated
the Confrontation Clause of the Sixth Amendment because he could not
see the facial expressions of the two child witnesses while they
testified. That claim does not warrant review by this Court.
In Coy v. Iowa, 487 U.S. 1012 (1988), this Court held that the
Confrontation Clause generally guarantees the defendant the right to
confron witnesses face-to-face. 487 U.S. at 1016. The Court also
held that the use of a screen preventing two child witnesses from
seeing the accused as they testified against him at trial violated the
Confrontation Clause. Id. at 1016-1021. The Court left open,
however, whether such a procedure would be permissible if the trial
judge made individualized findings that a particular child witness
needed special protection against having to face the defendant while
testifying. Id. at 1021. In a concurring opinion, Justices O'Connor
and White concluded that a trial procedure that denied a defendant the
right to confront witnesses face-to-face would not violate the
Confrontation Clause if the trial court made a "case-specific finding"
that denying confrontation was necessary "to further an important
public policy," such as protecting child witnesses against the trauma
of testifying under such circumstances. Id. at 1025.
The Court addressed that issue last Term in Maryland v. Craig.
Craig involved the use of a one-way television camera in order to
present the testimony of a child witness who was the alleged victim of
sexual abuse by the accused. The Court held that the Confrontation
Clause does not in every case forbid denying the defendant the right
to a face-to-face confrontation of a child witness who testifies
against him. 110 S. Ct. at 3162-3166. The defendant's right to
confront a witness face-to-face may be denied when doing so is
"necessary to further an important public policy" and "where the
reliability of the testimony is otherwise assured." Id. at 3166.
To establish the necessity for such a procedure, the trial court
must find that the chosen procedure is "necessary" to protect the
welfare of the particular child witness, that the witness would be
"traumatized" by the presence of the accused, not by the courtroom
generally, and that the emotional distress suffered by the child in
the presence of the defendant is "more than de minimis, i.e., more
than 'mere nervousness or excitement or some reluctance to testify.'"
110 S. Ct. at 3169 (citation omitted). The Maryland procedure, the
Court found, "ensures the accuracy of the testimony and preserves the
adversary nature of the trial," ibid., because it "preserves all of
the other elements of the confrontation right: the child witness must
be competent to testify and must testify under oath; the defendant
retains full opportunity for contemporaneous cross-examination; and
the judge, jury, and defendant are able to view (albeit by video
monitor) the demeanor (and body) of the witness as he or she
testifies," id. at 3166. As the Court explained, the Confrontation
Clause does not forbid denying a defendant a face-to-face
confrontation "where necessary to protect a child witness from trauma
that would be caused by testifying in the physical presence of the
defendant, at least where such trauma would impair the child's ability
to communicate," if the procedure "ensures the reliability of the
evidence by subjecting it to rigorous adversarial testing," thereby
preserving "the essence of effective confrontation." Id. at 3170.
The decisions below are consistent with Coy and Craig. The trial
judge had before him uncontroverted evidence indicating that the boys
would be emotionally tramatized and that they would not be able to
"talk about their experiences" and think about the questions if they
were forced to face petitioner while they testified. Tr. 77-78, 82;
Pet. App. 4b-5b. Relying on that evidence, the trial judge found that
the boys' ability to "think and testify accurately" would be impaired
if they were required to face petitioner. Id. at 8a. Although the
trial judge never used the word "necessity" in his findings, id. at
4b-5b, a finding of necessity is implicit in the court's findings.
Moreover, the procedures used were sufficient to ensure that the boys'
testimony was reliable. The boys testified under oath in petitioner's
presence. The boys were 10 and 12 years old at the time of trial and
thus wer able to understand the significance of their oath to testify
truthfully. And although petitioner could not see the boys' faces,
they testified in the full view of defense counsel and the trial
judge, who was the trier of fact in this bench trial.
The court of military review, exercising its independent
fact-finding authority, see Art. 66(c), UCMJ, 10 U.S.C. 866(c), found
that the seating arrangement was necessary in order to protect the
welfare of the boys. The court also concluded that the boys'
emotional distress at facing petitioner was not simply nervousness
caused by the courtroom setting, but was a fear of bein physically
assaulted. Id. at 10a. /3/ After discussing the evidence developed
at trial on the question of necessity, the court found that the trial
judge's inquiry satisfied the standard set forth in Justice O'Connor's
concurring opinion in Coy and justified "the particular steps taken to
accomodate the fears of the child witnesses in this case." Id. at 9a.
The court added, however, that it was not adopting a per se rule
approving the use of the same procedures in every case. In fact, the
court recognized that the presumption is that such procedures should
not be used. Ibid. /4/ In addition, the Court of Military Appeals
concluded that the trial judge's findings were adequate to satisfy the
requirements set forth in Craig. Id. at 10b-12b, 14b (Everett, C.J.,
concurring), 15b (Sullivan, J., concurring in the result).
Petitioner argues that the trial judge should have required the
children to testify facing petitioner, rather than relying on the
testimony of the phsychologist who had been treating them for more
than two years, before approving the seating arrangement. Pet. 5-6.
But this Court rejected a similar claim in Craig. The Court ruled
that a trial judge need not always question the child witness in the
defendant's presence in order to determine what effect confronting the
defendant would have on the child. Instead, the trial judge may rely
on expert testimony about the effect that testifying in the
defendant's presence would have on the child. 110 S. Ct. at
3170-3171. That ruling is equally applicably here.
Petitioner also maintains that the seating arrangement deprived him
of his ability to communicate with his counsel while the boys
testified. Pet. 7. That claim lacks merit. The trial court took
steps to protect petitioner's right to cross-examine the two boys and
to assure that petitioner could consult with counsel during the
proceedings. The court held a recess between the direct and
cross-examination of the younger boy, Tr. 146, and took another recess
during the cross-examination, Tr. 159. Petitioner was given the
opportunity for re-cross-examination of the younger boy, which his
counsel declined, Tr. 171, although petitioner reserved the right to
recall him as a witness later in the proceedings, Tr. 168. The court
held another recess before the defense cross-examination of the older
boy. Tr. 187. Petitioner was given, but declined, the opportunity
for re-cross-examination. Tr. 211. He also placed the older boy on
recall, Tr. 211, but never called him back to the stand. Petitioner
does not claim that the trial judge denied defense counsel the
opportunity to interrupt his cross-examination in order to consult
with petitioner. In fact, the defense never asked for such an
interruption. See Tr. 147-168, 188-206. Petitioner also has not
identified any way in which he was prejudiced by the seating
arrangement. Under these circumstances, the trial seating arrangement
did not deny petitioner the opportunity to consult with his counsel.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
WILLIAM R. DUGAN, JR.
Col., OJAG, USAF
BRENDA J. HOLLIS
Maj., OJAG, USAF
GLENN B. HAMMOND
Lt. Col., OJAG, USAFR
MORRIS D. DAVIS
Capt., OJAG, USAF Appellate Government Counsel Government Trial
and Appellate Counsel Division
JANUARY 1991
/1/ Petitioner waived his right to a trial by a court-martial panel
and requested a bench trial before the military judge alone, to which
he was entitled under Article 16(1)(b) of the UCMJ, 10 U.S.C.
816(1)(B). Tr. 10.
/2/ A rough diagram of the courtroom is attached to the records as
DX C. The letter "W" depicts where the boys would be seated during
their testimony. The room was described as being about 50 to 60 feet
in length, and about 15 feet in width. Tr. 83.
/3/ As that court explained, Pet. App. 10a:
Many witnesses may harbor a fear of being attacked for their
adverse testimony, but these children had already been repeatedly
beaten by (petitioner) during his commission of the offenses for which
he was being tried. Their fear was based on their actual knowledge of
the physical harm he was capable of inflicting.
/4/ As the court explained, ibid.:
We are not indicating our advance approval of every situation in
which witnesses testify with their backs to the accused, even where
there is an inquiry into the necessity for such a procedure. Coy
holds that the general rule is to the contrary. When exceptions are
found, the (trial) judge will, undoubtedly, have conducted a careful
inquiry into the reasons for the proposed seating arrangement. That
inquiry will have satisfied the judge that there are compelling
reasons for changing the traditional witness seating arrangement. A
thorough inquiry would probably include an in camera interview by the
judge with the witnesses who might need the special arrangement. This
procedure would allow the judge to evaluate the testimony of any
expert who have testified about the need for protections.